Allahabad High Court
Manik Chandra vs State Of U.P. on 10 July, 2025
Author: Saurabh Lavania
Bench: Saurabh Lavania
HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH Neutral Citation No. - 2025:AHC-LKO:39315 Court No. - 13 Case :- CRIMINAL APPEAL No. - 2284 of 2008 Appellant :- Manik Chandra Respondent :- State of U.P. Counsel for Appellant :- Dinesh Upadhyay,Harish Chandra Counsel for Respondent :- G.A. Hon'ble Saurabh Lavania,J.
1. Heard learned counsel for the appellants and learned A.G.A. for the State of U.P. and perused the record.
2. By the instant Criminal Appeal under Section 374 (2), Cr.P.C., the accused-appellants have challenged the judgment dated 25.09.2008 and order 27.09.2008 passed by the Additional Sessions Judge/Fast Track Court No. Vth, Faizabad in S.T. No. 80/2004 (State Versus Manik Chandra and Others), arising out of Case Crime No. 215/1998, under Sections 308/149, 323/149, 147, 427 I.P.C., Police Station- Patranga, District-Faizabad, convicting and sentencing the appellants under Section 308/149 I.P.C. to undergo four years rigorous imprisonment alongwith Rs. 500 fine and under Section 323/149 I.P.C. to undergo six months rigorous imprisonment and under Section 147 I.P.C. to undergo one year rigorous imprisonment and under Section 427 I.P.C. one year rigorous rigorous imprisonment each, with default stipulation.
3. The case of the prosecution in nutshell, as appears from the record, is to the effect that on 21.08.1998 at about 7 PM, Sahab Saran Yadav, Manik Chand, sons of Bihari; Krishna Kumar and Deshraj, sons of Ashrafi Lal; Nanhku, son of Sukhram, and Asrafi Lal son of Lutai, who died during trial, and therefore, the trial proceeded against the present appellants, named above, by braking/damaging the wall of informant namely Ram Baran Yadav son of Fateh Bahadur Yadav, r/o Village Annand Purwa, Machare Dalmau, P.S. Patranga, District Faizabad, were letting the water of their sump (ukcnku) from the land in possession of the informant and on being opposed by Fateh Bahadur, father of informant, the appellants named above assaulted him with 'Lathi', 'Beeru' and 'Kudal' and on alarm being raised by the father of the informant, Ram Baran Yadav/informant, Ram Niwas and Abhiran, (brother of informant) rushed to place of crime, who were also assaulted by the accused persons. In the incident, informant/Ram Baran; Fateh Bahadur, father of informant; Abhiran, brother of informant, and Ram Niwas sustained injuries.
4. Based upon the written complaint of aforesaid the FIR/Exhibit-Ka-1, was lodged at P.S. Patranga, District Faizabad on 22.08.1998 at 00.10 AM, against the accused, under Sections 147/323/504/506/427/308 IPC.
5. On 22.08.1998 itself the injured persons namely Ram Baran, Fateh Bahadur, Abhiran and Ram Niwas were medically examined.
6. According to the injury report Ram Baran Yadav-P.W.1 sustained five injuries, Fateh Bahadur-P.W.3 sustained four injuries, Abhiran sustained three injuries and Ram Niwas-P.W.2 sustained three injuries.
7. The Investigating Officer after completion of investigation submitted the charge sheet against the accused-appellants.
8. After submission of charge sheet, the Magistrate concerned took cognizance and thereafter the said case was committed to the Court of Sessions wherein it was registered as S.T. No. 80 of 2004 and on 15.02.2005 charges were framed against the accused namely Manik Chandra, Krishna Kumar, Desh Raj, Asharfi Lal and Nanhku under Sections 147, 323/149, 308/149, 427, 504, 506 I.P.C. and thereafter on 01.10.2005 charges were framed against the accused Sahab Saran under Sections 147, 323/149, 308/149, 427, 504, 506 IPC. The accused denied the charges and claimed trial.
9. To establish/prove the injuries and the case of the prosecution, the injury reports (Exhbit(s)-Ka 19 to 15), Ex-ray reports (Exhibit(s)-Ka 1 to 63) of injured(s) Ram Baran and Ahibaran and other documents viz written complaint (Exhibit-Ka-1), FIR (Exhibit-Ka-4), etc. were placed on record.
10. To establish the case of the prosecution, the injured witnesses namely Rambaran Yadav-P.W.1, Ram Niwaz-P.W.2, Fateh Bahadur-P.W.-3, were produced before the trial court, who remain intact and supported the case of the prosecution.
11. Dr. D.V. .Singh-P.W.-4 proved the Ex-ray plates (Exhibit-Ka-2) and (Exhibit-Ka-3), Dr. M.Rehman-P.W.-6 proved the injury reports (Exhibit-Ka-12 to Exhibit-Ka-15), formal witnesses namely Constable Shesh Nath Singh-P.W.5 and Constable Ram Naresh P.W.-7, proved the documents prepared during investigation.
12. That after closing of the evidence, statements of accused- appellants under section 313 Cr.P.C. were recorded by the trial court, after explaining the entire evidence and other circumstances, in which the appellants denied the prosecution story and the entire prosecution story was said to be wrong and concocted.
13. Thereafter, the learned trial court after hearing learned counsel for both the parties and appreciating the entire evidence, oral as well as documentary, found the accused-appellants guilty and convicted them as above.
14. In the aforesaid background of the case, the present appeal has been filed before this Court challenging the judgment of conviction.
15. While impeaching the judgment, under appeal, dated 25.09.2008, it is stated that the trial court failed to consider prosecution case and the evidence produced by the prosecution to establish its case including the evidence of injured witnesses in true spirit as a bare perusal of the same would show that the appellant ought have been convicted for the offence under Section 324 IPC and therefore in the judgment of the conviction the interference is required by this Court.
16. Learned A.G.A. for the State-respondent supported the judgment of conviction under appeal and stated that the statement of injured is sufficient to convict an accused. As such, no interference is required in the matter and the appeal is liable to be dismissed.
17. Considered the aforesaid and perused the record.
18. It would be apt to indicate here that it is well established that the evidence of an injured witness must be given due weightage as being an injured witness, his presence cannot be doubted. His statement is generally considered to be very reliable and it is unlikely that he/she has spared the actual assailant in order to falsely implicate someone else. The testimony of an injured witness has its own relevancy and efficacy as he has sustained injuries at the time and place of occurrence and this lends support to his testimony that he was present during the occurrence. Thus, the testimony of an injured witness is accorded a special status in law. The witness would not like or want to let his actual assailant go unpunished merely to implicate a third person falsely for the commission of the offence. Thus, the evidence of the injured witness should be relied upon unless there are grounds for the rejection of his evidence on the basis of major contradictions and discrepancies therein. [Vide: State of M.P. vs. Mansingh, (2003) 10 SCC 414; Jarnail Singh v. State of Punjab, (2009) 9 SCC 719; Balraje @ Trimbak v. State of Maharashtra, (2010) 6 SCC 673; Abdul Sayeed vs. State of M.P., (2010) 10 SCC 259; State of U.P. vs. Naresh, (2011) 4 SCC 324; Laxman Singh vs. State of Bihar (Now Jharkhand) (2021) 9 SCC 191; Balu Sudam Khalde and another vs. State of Maharashtra, 2023 SCC OnLine SC 355].
19. To ascertain as to conviction of the appellants is just and proper, this Court considered the statement of injured-witnesses namely Rambaran Yadav-P.W.1, Ram Niwaz-P.W.2, Fateh Bahadur-P.W.-3, produced before the trial court, who remain intact and supported the case of the prosecution as indicated in the FIR and the statements of Dr. D.V.Singh (Radiologist) (PW-4) and Dr. M. Rehman, who proved the X-ray plates and injury reports, deposed before the trial court.
20. According to the statement(s) of Dr. D.V. Singh-P.W.-4 and Dr. M. Rehman-P.W.-6, the injuries sustained by the injured persons were not fatal rather simple in nature except the injury i.e. 'fracture of soft of left alena' by Ram Baran.
21. This Court deems it appropriate to reproduce Section 308 IPC, which reads as under:
"308. Attempt to commit culpable homicide.--Whoever does any act with such intention or knowledge and under such circumstances that, if he by that act caused death, he would be guilty of culpable homicide not amounting to murder, shall be punished with imprisonment of either description for a term which may extend to three years, or with fine, or with both; and, if hurt is caused to any person by such act, shall be punished with imprisonment of either description for a term which may extend to seven years, or with fine, or with both.
Illustration A, on grave and sudden provocation, fires a pistol at Z, under such circumstances that if he thereby caused death he would be guilty of culpable homicide not amounting to murder. A has committed the offence defined in this section."
22. It is clear from the reading of the Section itself that to constitute an offence under Section 308 IPC, the following conditions should be fulfilled:
(a) that a person does an act;
(b) that the act is done with an intention or knowledge to commit culpable homicide not amounting to murder;
(c) that the person concerned commits the offence under such circumstances that in case the act so done by that person causes death, he would be guilty of culpable homicide not amounting to murder
(d) in case hurt is caused while committing this offence, the person concerned shall be awarded enhanced punishment.
23. Therefore, Section 308 IPC does not make it mandatory that for an offence to be covered under Section 308 IPC, hurt should have been caused by that person. Causing hurt is, therefore, not an essential condition to attract the provisions of Section 308 IPC.
24. The second part of Section 308 IPC further explains that in case hurt is caused to any person by an act falling within the purview of section 308 IPC, the accused shall be punished with imprisonment of either description for a term which may extend to 7 years or with fine or with both.
25. There is no confusion regarding the settled position of law and the definition of Section 308 IPC itself that causing hurt by the act committed under Section 308 IPC and no hurt being caused are both covered under Section 308 IPC itself, attracting different punishments. What is crucial to note while deciding a case at the stage of charge under Section 308 IPC is that the act should have been caused with such intention or knowledge and under such circumstances that in case said act caused death, he would be guilty of culpable homicide not amounting to murder.
26. Causing of hurt is not relevant for this purpose. A similar view was taken by the Hon'ble Apex Court in the case of Sunil Kumar vs. NCT of Delhi, 1998 8 SCC 557, the relevant portion reads as under:
"4. The view taken by the High Court is obviously erroneous because offence punishable under Section 308 IPC postulates doing of an act with such intention or knowledge and under such circumstances that if one by that act caused death, he would be guilty of culpable homicide not amounting to murder. An attempt of that nature may actually result in hurt or may not. It is the attempt to commit culpable homicide which is punishable under Section 308 IPC whereas punishment for simple hurts can be meted out under Sections 323 and 324 and for grievous hurts under Sections 325 and 326 IPC........."
27. The Hon'ble Apex Court in the case of Mathai VS. State of Kerala reported in MANU/SC/0035/2005 observed as under:
"10. Section 325 deals with punishment for voluntarily causing grievous hurt.
11. Section 326 deals with offence of voluntarily causing hurt by dangerous weapons or means.
12. Section 326 provides that whoever, except in the case provided for by Section 335, voluntarily causes grievous hurt by means of any instrument for shooting, stabbing or cutting, or any instrument which, used as a weapon of offence, is likely to cause death, or by means of fire or any corrosive substance, or by means of any explosive substance, or by means of any substance which it is deleterious to the human body to inhale, to swallow, or to receive into the blood, or by means of any animal, shall be punished with imprisonment for life or with imprisonment of either description for a term which may extend to ten years, and also with a liability to pay a fine.
13. Sections 325 and 326, like the two Sections immediately preceding, provide the ordinary punishment and punishment under certain aggravating circumstances of the offences mentioned thereunder. The two latter Sections apply to the case of causing "grievous hurt" and the immediately preceding two Sections to the case of 'hurt'.
14. "Grievous hurt" has been defined in Section 320 IPC, which read as follows:
"320 Grievous Hurt The following kinds of hurt only are designated as "grievous"- First-Emasculation.
Secondly - Permanent privation of the sight of either eye.
Thirdly - Permanent privation of the hearing of either ear.
Fourthly - Privation of any member or joint.
Fifthly - Destruction or permanent impairing of the powers of any members or joint. Sixthly - Permanent disfiguration of the head or face.
Seventhly - Fracture or dislocation of a bone or tooth.
Eighthly - Any hurt which endangers life or which causes the sufferer to be during the space of twenty days in severe bodily pain, or unable to follow his ordinary pursuits."
15. Some hurts which are not like those hurts which are mentioned in the first seven clauses, are obviously distinguished from a slight hurt, may nevertheless be more serious. Thus a wound may cause intense pain, prolonged disease or lasting injury to the victim, although it does not fall within any of the first seven clauses. Before a conviction for the sentence of grievous hurt can be passed, one of the injuries defined in Section 320 must be strictly proved, and the eighth clause is no exception to the general rule of law that a penal statute must be construed strictly.
16. The expression "any instrument which used as a weapon of offence is likely to cause death" has to be gauged taking note of the heading of the Section. What would constitute a 'dangerous weapon' would depend upon the facts of each case and no generalization can be made.
17. The heading of the Section provides some insight into the factors to be considered. The essential ingredients to attract Section 326 are:
(1) voluntarily causing a hurt;
(2) hurt depending upon various factors like size, sharpness used must be a grievous hurt; and (3) the grievous hurt must have been caused by dangerous weapons or means.
As was noted by the Hon'ble Apex Court in the case of State of U.P. v. Indrajeet Alias Sukhatha, reported in, MANU/SC/0529/2000: 2000CriLJ4663 there is no such thing as a regular or earmarked weapon for committing murder or for that matter a hurt. Whether a particular article can per se cause any serious wound or grievous hurt or injury has to be determined factually. As noted above the evidence of Doctor (PW 5) clearly shows that the hurt or the injury that was caused was covered under the expression 'grievous hurt' as defined under Section 320 IPC. The inevitable conclusion is that a grievous hurt was caused. It is not that in every case a stone would constitute a dangerous weapon. It would depend upon the facts of the case. At this juncture, it would be relevant to note that in some provisions e.g. Sections 324 and 326 expression "dangerous weapon" is used. In some other more serious offences the expression used is "deadly weapon" (e.g. Sections 397 and 398). The facts involved in a particular case, depending upon various factors like size, sharpness, would throw light on the question whether the weapon was a dangerous or deadly weapon or not. That would determine whether in the case Section 325 or Section 326 would be applicable.
18. In the instant case considering the size of the stone which was used, as revealed by material on record, it cannot be said that a dangerous weapon was used. Therefore, the conviction is altered to Section 325 IPC. No hard and fast rule can be applied for assessing a proper sentence and a long passage of time cannot always be a determinative factor so far as sentence is concerned. It is not in dispute that a major portion of the sentence awarded has been suffered by the appellant. On the peculiar facts of the case we restrict it to the period already undergone."
28. The Hon'ble Apex Court in the case of Bishan Singh & another V State, AIR 2008 SC 131, observed as under:-
"18. In Bishan Singh & another V State, AIR 2008 SC 131 the surviving accused were tried and convicted for commission of offences under sections 147 and 308/149 IPC. As per the complainant, the accused persons allegedly assaulted him with lathis and took out a sum of Rs.400/- from his pocket. The injuries suffered by the complainant as per the injury report are as under:-
1. Lacerated wound 3 cm x 1 cm on scalp at right parietal region, 14 cm above the right eye-brow. Scalp deep. Fresh bleeding present.
2. Lacerated wound 5 cm x = cm x scalp deep on scalp, at right parietal area, 19 cm above the right eye-brow.
3. Lacerated wound 3 cm x < cm x skin deep, 4 cm above the right eye-brow at right forehead, 6 cm x 7 cm swelling around the wound.
4. Abrasion 1 cm x = cm, at upper lip, 3 cm from the right angle of the mouth. 4/1 Abrasion 1 cm x = cm at lower lip right angle of mouth.
5. Contusion mark 10 cm x 5 cm above right shoulder reddish in colour. Swelling 2 cm around the wound.
6. Contusion mark 6 cm x 6.5 cm on above and front and middle of left arm, 13 cm below the shoulder joint 1 cm swelling around the injury.
7. Contusion 12 cm x 10 cm at fore-arm, 8 cm from the left wrist joint = cm swelling around the injury.
8. Complain of pain in both lower legs and thigh, but no injury seen.
The injuries except one injury were simple. The injured deposed that his head was wounded and his shirt was full of blood. The Trial Judge relying on or on the basis of the testimony of the witness convicted the appellants for commission of an offence under Sections 147 and 308/149 IPC. It was observed that The Trial Judge did not notice the ingredients of Section 308 IPC which provides for existence of an intention or knowledge. The High Court also dismissed the appeal and opined that it is established that the intention of the accused persons was to commit culpable homicide. They had enmity with the injured. Threats were also given to him by the accused to ruin his life. Injuries were also caused on scalp. The Supreme Court was observed as under:-
Before an accused can be held to be guilty under Section 308 IPC, it was necessary to arrive at a finding that the ingredients thereof, namely, requisite intention or knowledge was existing. There cannot be any doubt whatsoever that such an intention or knowledge on the part of the accused to cause culpable homicide is required to be proved. Six persons allegedly accosted the injured. They had previous enmity. Although overt-act had been attributed against each of the accused who were having lahtis, only seven injuries had been caused and out of them only one of them was grievous, being a fracture on the arm, which was not the vital part of the body.
29. The Hon'ble Apex Court in the case of Roop Chand v. State (NCT of Delhi), reported in 2020 SCC OnLine SC 1353, observed as under:-
"5. The short question which arises for consideration is whether the offence committed by the appellant falls within the ambit of Section 308 or 324 of IPC?
6. Section 308 of IPC provides that "whoever does any act with such intention or knowledge and under such circumstances that, if he by that act caused death, he would be guilty of culpable homicide not amounting to murder"; and in case any hurt is caused to any person by such act, then "the accused is liable to be punished with imprisonment of either description for a term which may extend to seven years, or with fine, or with both."
7. Therefore, to secure conviction under Section 308 of IPC, the prosecution must prove that the accused had requisite 'intention' or 'knowledge' to cause culpable homicide, which in turn can be ascertained from the actual injury as well as from other surrounding circumstances.
8. Section 324 of IPC, on the other hand, criminalises willful infliction of injuries on another and states that whoever "voluntarily causes hurt by means of any instrument for shooting, stabbing or cutting, or any instrument which, used as a weapon of offence, is likely to cause death", would be punished with "imprisonment of either description for a term which may extend to three years, or with fine, or with both."
9. In contrast to Section 308 IPC, which necessarily requires proving 'intention' or 'knowledge', to attract Section 324 IPC it is sufficient if a person voluntarily causes hurt by means of an instrument for stabbing or cutting.
10. It is thus crucial to determine whether the appellant had 'intention' or 'knowledge' that the injury inflicted on the victim could cause the latter's death and as a result thereto the appellant could be guilty of committing culpable homicide not amounting to murder?
30. Upon due consideration of aforesaid, this Court is of the view that the conviction of the caused-appellants is not justified for the offence under Section 308 IPC as the injuries sustained by the injured persons and the weapons used in the incident and also the prosecution case set up in the FIR and the evidence of injured-witnesses indicate that the incident took place on spur of moment without premeditation of mind. Accordingly, the conviction of the accused-appellants is converted for the offence under Section 325 IPC in place of Section 308 IPC. Conviction of accused-appellants under other Sections is upheld.
31. On sentence, taking note of the aforesaid facts of the case and the evidence on record, as already noticed hereinabove, and also the period elapsed from 21.08.1998, the date of incident, i.e. about 27 years and that the accused-appellants have no past history of criminal record and the parties are residents of the same vicinity, this Court is of the view that a lenient view has to be taken while imposing the sentence at this stage.
32. For the reasons afore-stated, the appeal is allowed in part. The judgment dated 25.09.2004 and order of conviction dated 27.09.2008 passed by the Additional Sessions Judge/Fast Track Court No. Vth, Faizabad in S.T. No. 80/2004 (State Versus Manik Chandra and Others), in Case Crime No. 215/1998, under sections 147, 323/149, 308/149, 427, 504, 506 I.P.C., Police Station Patranga, District Faizabad, is hereby modified. The accused-appellants are sentenced to imprisonment for the period already undergone with fine of Rs. 15000/- each and in default to pay the fine to undergo one month simple imprisonment for each of the offence.
33. The appellants are stated to be on bail, their personal bonds are cancelled and sureties are discharged.
34. Let a copy of this judgment and record be sent forthwith to the trial court concerned for compliance.
Order Date :- 10.07.2025 Jyoti/-